MEMORANDUM AND ORDER REGARDING PROFFERED EXPERT TESTIMONY
I. BACKGROUND
In the hours following Barack Obama’s election, between November 4 and November 5, 2008, the Macedonia Church of God in Christ in Springfield, Massachusetts, was destroyed by a fire that was quickly identified as arson. The congregation of the church was largely African-American.
Some weeks later, after having made inculpatory statements to a state trooper working undercover, Defendant was arrested and, following a waiver of his Miranda rights, agreed to speak to law enforcement officers. After several hours of questioning, all recorded on videotape, Defendant confessed to participating in the arson. While he denied any racist motivation on his own part, he conceded, in essence, that the two other men involved with him committed the crime as an expression of racial bias against the black congregation and as an act of protest against the election of President Obama.
Following his indictment, Defendant moved, through counsel, to suppress his confession on various grounds. On February 18, 2011, after a lengthy evidentiary hearing, this court orally denied Defendant’s motion. Recently, the court followed up with a written memorandum setting forth the reasons for this ruling in detail. (See Dkt. No. 297.)
Dеfendant’s counsel thereafter made a proffer of expert testimony regarding false confessions, which she wished to offer at trial, and the government objected. On March 2, 2011, the court conducted a hearing pursuant to
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
This court ultimately declined to permit Professor Hirsch’s testimony, but addressed the issue of false confessions both in its
voir dire
questions during jury selection and in its jury instructions. On April 14, 2011, after seventeen days of trial, at which the confession was presented, a jury found Defendant guilty of conspiracy against civil rights in violation of 18 U.S.C. § 241, damage or destruction to religious real property in violation of 18 U.S.C. § 247(c), and use of fire to commit a felony in violation of 18 U.S.C. § 844(h)(1).
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II. DISCUSSION
Federal Rule of Evidence 702 governs the admissibility of expert testimony in federal courts. Rule 702 mandates that an expert be “qualified ... by knowledge, skill, experience, training, or education” and that the expert possess specialized knowledge that “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. In addition, the rule requires that such testimony (1) rest on “sufficient facts or data,” (2) reflect the use of “rehable principles and methods,” and (3) involve the reliable application of those principles and methods to the facts of the case.
Id.
In examining these elements, the trial court plays an important role as gatekeeper of evidence presented to the jury.
See
Daubert,
This court excluded Professor Hirsch’s testimony on two principal grounds: (1) he lacked speciаlized knowledge that would assist the jury in understanding or weighing the evidence; and (2) his testimony was not based on sufficient facts or data and did not involve the application of reliable principles or methods to the facts of this case.
A. Professor Hirsch’s Expertise.
As noted, Rule 702 requires that the witness be “qualified as an expert by knowledge, skill, experience, training, or education,” and that he be prepared to offer scientific, technical, or other specialized knowledge that will assist the trier of fact in understanding or weighing the evidence. Fed.R.Evid. 702. Here, the proposed expert, Professor Alan Hirsch, is a graduаte of Amherst College and Yale Law School, presently employed as an unaffiliated attorney and as a part-time visiting professor at Williams College in the Political Science Department and Legal Studies Program. Professor Hirsch’s expert declaration reveals that he has a particular interest in the literature of false confessions and asserts that he has “contributed substantially” to that literature. (Dkt. No. 239, Hirsch Deck ¶ II.) At the hearing on March 2, 2011, Professor Hirsch described these contributions.
Professor Hirsch has authored three scholarly articles relating to the field of falsе confessions:
Confessions and Harmless Error: A New Argument for the Old Approach,
12 Boalt J. Crim. L. 1 (2007);
Threats, Promises, and False Confessions: Lessons of Slavery,
49 How. L.J. 31 (2005); and
The Tragedy of False Confessions (and a Modest Proposal),
81 N.D. L.Rev. 343 (2005). Respectively, these articles present (1) an argument against the Supreme Court’s holding in
Arizona v. Fulminante,
While these articles contribute somewhat to the literature on false confessions generally, they do not address a single issue having direct relevance to this proceeding. They do not present new findings on the prevalence of false confessions; they do not identify specific factors shown tо increase or decrease the reliability of confessions; and, of most relevance here, they do not critique particular law enforcement interrogation techniques.
Professor Hirsch has never personally conducted any original studies in the area of false confessions. He has never participated in an interrogation, never (so far as the record indicates) even been present at an interrogation, never (again, so far as the record shows) directly interviewed anyone who has been interrogated, and never personally interviewed аny group of interrogators who have used particular techniques. He has no psychological training, or any training in statistical or sociological analysis. Although the work is interesting, it can hardly be argued that authoring three articles very loosely related to the field of false confessions renders Professor Hirsch an expert for Daubert purposes in this trial.
Apart from these scholarly articles, and his reading of the notable literature in the field, Professor Hirseh has written two short op-ed pieces, one for the Legal Times in 2008 2 and one for the Los Angeles Times in 2006, 3 and also operates a website, www.truthaboutfalseconfessions. com, which is devoted tо the subject of false confessions.
Although these efforts further illustrate that Professor Hirseh has a genuine interest and academic credentials in this area, his degree of specialized knowledge is simply too thin to give his testimony the foundation needed to permit a jury to consider it. In the end, he is simply an intelligent man, well read in the area, who has written a bit on the general topic of false confessions and who holds an opinion on the topic. That is not enough.
B. Methodology.
Professor Hirseh was prepared to testify that (1) contrary to popular belief, people do confess to crimes they have not committed; (2) certain police interrogation techniques carry a risk of obtaining .false confessions; and (3) such techniques were used in this case, thus rendering Defendant’s confession unreliable.
The court will address these three proposed areas of testimony in reverse order, starting with the most problematic.
1. “The Defendant’s Confession Was Unreliable”.
In his declaration, Professor Hirseh observed that false confessions fall into several categories and that the relevant category here is the “coerced-compliant” confession, which is produced by “a suspect who knows he is innocent but nevertheless confesses in order to escape a difficult interrogation or to gain an implied benefit.” (Dkt. No. 239, Hirsch Deck ¶ VII) Professor Hirsch proposed to testify that coerced-compliant false confessions have certain characteristics, that Defendant’s confession shared those characteristics, and that, therefore, he had
It is well established, and obvious, that an “expert” cannot offer an opinion as to guilt or innocence at a criminal trial.
See, e.g., United States v. Boney,
Professor Hirseh’s proposed testimony would have run directly contrary to this well-established rule. An opinion that a defendant’s statement “I am guilty” is unreliаble cannot be logically disconnected from the implicit opinion that the defendant is, in fact,
not
guilty.
See United States v. Benally,
Significantly, the jury in this case was particularly well positioned to evaluate for itself the effect of the interrogation technique on the reliability of Defendant’s confession. They were able to observe (and, as the trial unfolded, re-observe) the entire confession captured on videotape. The jury could take note of the surroundings, observe the interactions between law enforcement and Defendant, watch their expressions, and listen to the tones and inflections of their voices.
4
Expert testimony was not needed to draw common-sense inferences from these visual and auditory cues.
See generally United States v. Hall,
In sum, the proffered expert testimony to the effect that Defendant’s confession was unreliable was both improper under the law and unnecessary in the specific factual context. 5
Courts have permitted expert witnesses to testify regarding the risk of a false confession when certain factors beyond the ken of a layperson, such as a diagnosable mental impairment, make a suspect particularly vulnerable to police interrogation. For instance, in
United States v. Shay,
Here, however, Defendant suffered from no psychological or other disability, and, if he had, Professor Hirsch would have been unqualified to opine about it. Instead, Defendant proposed that Professor Hirsch testify that the interrogation techniques employed in this case increased the risk of a false confession. The fatal problem with this proposed testimony is that it lacked any objective, foundation whatsoever. Professor Hirsch offered absolutely no basis fоr concluding that the interrogation methods used here had any impact, one way or another, on the truthfulness of the confession.
In his declaration and at the hearing, Professor Hirsch explained that the primary cause of “coerced-compliant” confessions are certain interrogation methods employed by law enforcement, including a widely used method known as the Reid technique. The Reid technique is a trademarked interrogation method developed by the firm of John E. Reid & Associates, Inc., which involves, among other things, isolating suspects from family and friends, confronting them with inculpatory evidence, rebuffing denials of innocence, and minimizing the subject’s involvement in the offense. (Dkt, No. 239, Hirsch Decl. ¶¶ VIII — XII.) Beyond his own intuition, however, Professor Hirsch offered no basis for concluding that these tactics had any tendency necessarily to cause false, rather than true, confessions.
Professor Hirsch noted that “the risk of a false confession is heightened by assorted ‘situational’ factors.” (Dkt. No. 239, Hirsch Decl. ¶ XIII.) However, he provided only one example: lengthy interrogations. In support, Professor Hirsch pointed to a study of 125 supposedly “proven” false confessions (discussed in greater detail below) in which eighty-four percent of
Apart from the foregoing statistic, Professor Hirsch’s declarаtion offered no other evidence of the danger of certain police interrogation tactics, and the Reid technique in particular, except to say that “the use of these tactics [employed in the Reid technique] and their correlation with false confessions are extensively documented in the literature.... ” (Id. ¶ VIII.) Despite this broad statement, he did not provide any further explanation but, instead, pointed to a list of scholarly articles discussing false confessions generally. (Id.)
Defense counsel offered two examples of such literature to the court. One was the aforementioned article by authors Steven A. Drizin and Richard A. Leo titled The Problem of False Confessions in the Posh-DNA World, 82 N.C. L.Rev. 891 (2004), which, as noted, examined 125 cases of “proven” false confessions. Nowhere in this study did the authors present evidence that the rate of false confessions increased when any particular interrogation method was used. In fact, the focus of this study was on “vulnerable populations” not present in this case — children, juveniles, the mentally retarded, and the mentally ill— rather than on the interrogation techniques themselves. 7 See id. at 963-74.
A second article submitted by defense counsel and relied on by Professor Hirsch was a study сonducted by a number of authors in which they collected and analyzed questionnaires presented to 631 police investigators concerning their interrogation practices. See Kassin, et al., Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 Law Hum. B. 381 (2007). While these questionnaires asked officers generally about their interrogation methods, the study did not attempt to find a correlation, let alone a causal link, between specific interrogation methods and the likelihood of obtaining a false confession. Moreover, only eleven perсent of officers reported using the Reid technique, see id. at 388, making the study even less relevant to the present case.
At the
Daubert
hearing, Professor Hirsch also mentioned two experiments in which researchers tested certain interrogation techniques — specifically, the tech
In the second study, students were given a set of assignments and told that in some assignments collaboration with classmates was acceptable, while in others it was prohibited. The researchers then accused innocent students of improperly collaborating on certain assignments, informed them that they had violated university rules prohibiting cheating, and, for some, minimized thе extent of their wrongdoing and encouraged them to take responsibility for their actions. In the group subjected to the minimization techniques, the “confession” rate tripled. (Dkt. No. 262, Tr. 2/3/11, at 40-41.)
Obviously, these “interrogations” were not conducted by law enforcement, were not part of a criminal investigation, did not involve actual suspects, and did not present the students with a serious penalty. As a result, Professor Hirsch readily admitted that these studies have “limited value,” (Dkt. No. 262, Tr. 2/3/11, at 38-41, 109), which, in the context of this case, is an understatement.
Professor Hirsch’s criticism of the Reid technique appeared, at one point in his testimony, to be that it increased the overall number of confessions, both true and false. (Dkt. No. 262, Tr. 2/3/11, at 35 (“I want to be very clear that, number one, the Reid Technique is too effective. The problem is not that it’s ineffective. It breaks down guilty suspects. The problem is that it also breaks down innocent suspects.”).) Again, he failed to point to any data supporting even this position, 8 which does not address the central issue here: the relative frequency of false confessions and the factors contributing to it.
In sum, the proffered expert testimony to the effect that the Reid technique enhanced the risk of an unreliable confession lackеd any objective basis for support whatever. Although Professor Hirsch insisted that “there is a wealth of information about the risks of the Reid technique,” he could point to none. (Dkt. No. 262, Tr. 2/3/11, at 132.) It is true, as able defense counsel pointed out, that all science is not the same, and in the area of false confessions the kind of strictly mathematical support available in other areas may be lacking. But
some
objective basis other than say-so must be offered, and none was.
See Gen. Elec. Co. v. Joiner,
As a final point, it is useful to bring up the overworked metaphor that what is sauce for the goose is sauce for the gan
3. “False Confessions Happen. ”
The court gave the most extended consideration to this third area of proposed testimony. As the Fourth Circuit has observed, “the phenomenon of false confessions is counter-intuitive and is not necessarily explained by the general proposition that ‘jurors know people lie.’ ”
United States v. Belyea,
First, Professor Hirsch was not qualified to testify as an expert on this subject of false confessions for the reasons explained above.
Second, Professor Hirsch’s testimony would have been so circumscribed as to make it unhelpful. He conceded that it was impossible to provide even a rough estimate of the number of false confessions or the frequency with which they occurred. (Dkt. No. 262, Tr. 2/3/11, at 94, 100-01.) He agreed that there have been hundreds of thousands of confessions reported and that the number that have been proven false remains in the low hundreds, although he emphasized that “there have been many more than identified.” 9 (Id.) Given the minimal data that currently exist on this subject, Professor Hirsch’s testimony would have been limited more or less to a recent statement made by the рresident of the website www.falseconfessions.org in a letter to the editor of the New York Times: “False confessions happen.” Lonnie Soury, Letter to the Editor, March 27, 2011, available at http://www.nytimes.com/ 2011/03/28/opinion/lweb28confession.html. The court concluded that such testimony would not be helpful to the jury.
In fact, without the ability to opine on the alleged dangers of the Reid technique, Professor Hirsch’s proposed testimony had become entirely unhinged from the facts of this case, and federal courts of appeals have consistently upheld the exclusion of such testimony.
See United States v. Redlightning,
Third, and finally, to the extent that the jurors needed to hear that “false confessions happen,” the court told them exactly that, repeatedly and emphatically, both during the voir dire and in the jury instructions. In pertinent part, the instruction read as follows:
You should scrutinize this evidence [concerning the defendant’s confession] carefully and determine for yourselves the true significance of the defendant Michael Jacques’s statements to Trooper Mazza and Special Agent Smythe. It is not uncommon for people to confess honestly to a crime they have committed. It is also known that people, for various reasons, may admit to crimes they did not in fact commit. In weighing the statements made by the defendant Michael Jacques during his questioning you should consider all of the evidence that may assist you in determining the credibility of those statements, including the manner and circumstances of the questioning and any evidence in the case that tends to corroborate or contradict those statements. You may give such weight to the statements made by Michael Jacques during his questioning by Trooper Mazza and Special Agent Smythe as you think they deserve under all thе circumstances.
Nothing would have been added by having an expert take the stand and repeat the same sentiment. Indeed, if the court had allowed the proffered testimony, it would have had to permit the government, in fairness, to put on a witness to point out that true confessions also happen, and at a far greater rate than false ones. Little was to be gained, and much potentially lost, by entering this thicket.
III. CONCLUSION
For the foregoing reasons, the court declined to permit Professor Hirsch’s expert testimony.
Notes
. At the trial, a co-defendant, Thomas Gleason, testified for the government and identifled Defendant as one of the arsonists.
. Alan Hirsch, Not Coming Clean: Common Police Practices Won’ Cure Tainted Terrorist Confessions, Legal Times (Feb. 18, 2008).
. Alan Hirsch, Why the Innocent Confess, The Los Angeles Times (Apr. 25, 2006).
. It is noteworthy that in one article cited by Professor Hirsch, (Dkt. No. 239, Hirsch Decl. ¶ II n. 1), the principal reform suggested by the authors to reduce the likelihood of false confessions was videotaping all police interrogations. See Kassin, et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 25 (2010) (“Without equivocation, our most essential recommendation is to lift the veil of secrecy from the interrogation process in favor of the principle оf transparency. Specifically, all custodial interviews and interrogations of felony suspects should he videotaped in their entirety and with a camera angle that focuses equally on the suspect and interrogator.’’) (emphasis in original).
. Professor Hirsch was prepared to testify that all three Defendants in this case produced “unreliable” confessions. (Dkt. No. 262, Tr. 2/3/11 at 133.) Significantly, two of these three defendants pled guilty after an extensive colloquy. When asked by the court
. Professor Hirsch provided no information about the length of all interrogations that eventually ended in confession. Although the study cited by Professor Hirsch noted that "more than 90% of normal interrogations last less than two hours,” this statistic is entirely unhelpful given that it refers to all police interrogations, not simply those that ended in a confession. The Problem of False Confessions in the Post-DNA World, 82 N.C. L.Rev. 891, 946 (2004) (emphasis added).
. Notably, the authors did not point to evidence showing that the rate of false confessions increased when certain interrogation methods were used even with respect to these particularly vulnerable populations. Moreover, eighty-one percent of false confessions studied in this article involved murder, while only three percent involved arson. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C.L.Rev. 891, 945 (2004). Professor Hirsch conceded that this disparity is statistically significant.” (Dkt. No. 262, Tr. 2/3/11, at 97.)
. In fact, an article cited in Professor Hirsch’s declaration belies this assertion. See Kassin, et al., Police-Induced. Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 27-28 (2010) (observing that the overall confession rate is higher in the United Kingdom, where police have transitioned "from a classic interrogation to a process of 'investigative interviewing’ ” and where "the use of psychologically manipulative tactics had significantly declined — without a corresponding drop in the frequency of confessions").
. Professor Hirsch did note that, in the aforementioned study involving a review of questionnaires presented to 631 police officers, the officers estimated on average that just under five percent of innocent suspects confessed. (Dkt. No. 262, Tr. 2/3/11 at 94 (citing Kassin, et al., Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 Law Hum. B. 381, 392 (2007)).) However, this study was founded on anecdotal evidence, it did not address the rate of false confessions as compared to true confessions, and Professor Hirsch agreed that "it would be completely speculative” to extrapolate from these findings. (Dkt. No. 262, Tr. 2/3/11 at 94.)
. Only the Fourth Circuit in
Belyea
found the exclusion of such testimony to be improper, and even then, as noted above, the decision turned on the trial court's failure to conduct a full
Daubert
inquiry before reaching its conclusion.
See United States v. Belyea,